Ms E and TUSLA the Child and Family Agency

Case Number: 160274

Whether TUSLA was justified in its decision to refuse access to records relating to the applicant's children on the basis of sections 31 and 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request dated 7 September 2015, the applicant sought access to all files relating to her two children. On 20 November 2015, TUSLA decided to part grant the request, refusing access to certain records under sections 31 and 37 of the FOI Act. In her request of 27 November 2016 for an internal review of that decision, which was jointly signed by the applicant and her husband, the applicant indicated that she was seeking all records regarding herself, her husband, and her two children. TUSLA failed to issue an internal review decision within the time prescribed and on 1 February 2016 the applicant sought a review by this Office of TUSLA's refusal to release all relevant records.

Following intervention by this Office, TUSLA conducted a late internal review and issued its decision to the applicant on 18 February 2016. The internal reviewer noted that the applicant had expanded her request to include records relating to herself and her husband. Due to the delay in processing the request, the internal reviewer accepted the expanded scope of the request and decided to part grant the request. Of the 629 records identified by TUSLA, 389 were released in full, 95 were deemed outside the scope of the request, 2 were released with parts redacted on the ground that the parts in question were outside the scope of the request, 38 records were released with redactions and 105 records were withheld under sections 31 and 37 of the FOI Act. On 24 March 2016, the applicant informed this Office that she remained dissatisfied with TUSLA's response.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and TUSLA as set out above and to the correspondence between this Office and both TUSLA and the applicant on the matter. I have also had regard to the contents of the records at issue, copies of which were provided to this Office for the purpose of conducting the review. In referring to the records at issue, I have adopted the numbering system used by TUSLA in the schedule of records it released to the applicant with its letter of 18 February 2016.

Scope of the Review

While TUSLA decided to consider the expanded scope of the applicant's request as set out in her request for internal review, it is not within the remit of this Office to consider whether a right of access exists to records that were not captured by the original request. Nevertheless, given the nature and subject matter of the additional records considered in this case, it seems to me that a strong case can be made that the additional records considered by the internal reviewer were, indeed, captured by the scope of the original request in so far as their contents are substantially related to TUSLA's files relating to the applicant's children. As such, I am prepared to accept that all of the records considered by TUSLA are relevant to this review.

During the course of the review, TUSLA agreed to release four additional records in their entirety, namely records 203 and 205, to which access had originally been granted in part only, and records 246 and 247 which had been deemed outside the scope of the request.

TUSLA identified records 1-93 and part of record 297 of File Volume 2 as well as part of record 30 on File Volume 3 to be outside the scope of the applicant's request. The redacted parts of records 297 and 30 do not relate to the applicant or her family and are clearly not captured by the request. TUSLA described records 1-93 as copies of witness statements made to Gardaí in relation to criminal proceedings taken against the applicant's husband. There is no mention of the applicant's children in any of these records/redactions and they substantially relate to historical events which pre-date the birth of the applicant's children by a number of decades. Accordingly, I am satisfied that these records are not captured by the applicant's request and they will not be considered in this review.

Accordingly, this review is concerned solely with whether TUSLA was justified in its decision to refuse access to the remaining 141 records, either in whole or in part, under sections 31 and 37 of the FOI Act.

Analysis and Findings

Preliminary Matters
Before setting out my findings, I should point out that, while I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that the extent to which I can describe the contents of the records is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation for seeking access to the records cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

I should also draw attention to section 18 of the FOI Act, which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 31(1)(a) - Legal Professional Privilege
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Unlike several other of the exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Having examined the records to which TUSLA considers that section 31(1)(a) applies, I note that some comprise communications between TUSLA/HSE and their legal advisers concerning requests for legal advice, the provision of legal advice and the discussion of litigation, while a small number comprise communications between the professional legal adviser and a third party, the dominant purpose of which is the preparation of litigation.

There are also some internal records, such as file notes and emails, which identify legal issues to be raised with legal advisors and which discuss or note the legal advice received. Section 31(1)(a) is aimed at protecting confidential communications between clients and their legal advisers as well as very closely related material which would disclose the substance of such communications. I consider that the contents of those internal records are so intrinsically linked with the legal advice sought or received that release of the records would disclose that advice.

Accordingly, I am satisfied that section 31(1)(a) applies to the records and I find that TUSLA was justified in refusing access, either in whole or in part, under section 31(1)(a).

Section 31(1)(b)
Section 31(1)(b) of the FOI Act provides for the mandatory refusal of a request if the record sought is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. TUSLA cited this exemption in respect of records 94 to 149 of File Volume 2.

The records at issue comprise reports prepared for the Court in relation to care proceedings. The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings in accordance with Section 29 of the Child Care Act 1991. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. It is clear from my examination of the records that they were prepared for the Court in the context of proceedings under the Child Care Act. I am satisfied that the records identified are exempt under section 31(1)(b) and are covered by the in camera rule.
In her judgment in LK and the Information Commissioner [2013] IEHC 373 which addressed records created in the context of child care proceedings, O'Malley J. stated, referring to the judgment of O'Neill J. in EH v. Information Commissioner [2001] 2 I.R. 463, that
"The Freedom of Information Act is not, as O'Neill J. makes clear, intended to be used in a manner that bypasses the constitutionally established structures for the administration of justice."
O'Malley J. went on to find that:
"The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of child care proceedings ...... Neither the status of the appellant as a party to District Court proceedings not[r] the purpose for which she wishes to use the report are relevant to his powers in this respect."
I am satisfied that the position as set out in LK and the Information Commissioner applies here and as I am not aware of the existence of any prior judicial authority for the release of these records, I consider that release of these records to the applicant on foot of her FOI request would constitute contempt of Court. I find, therefore, that section 31(1)(b) applies to the records identified as emanating or derived from the proceedings involving the applicant's family.

Section 37 and Personal Information
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which are included in the definition, without prejudice to the generality of the forgoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual" and "(xiv) the view or opinions of another person about the individual".

Section 37(1) provides that an FOI body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to individuals other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.

I am satisfied that the information redacted by TUSLA from 21 records on the basis of section 37(1) is either personal information relating to individuals other than the requester, her husband or her children, or is joint personal information relating to the applicant, her husband, or her children, that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) applies.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption under section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that access to the personal information of a third party may be granted where, on balance:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third parties concerned, nor do I consider this to be the case. I therefore find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

In relation to the issue of the public interest under section 37(5)(a), it is important to take note of the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 (which I shall refer to as the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

In this case, the applicant has not identified a specific public interest supporting the release of the records. Nevertheless, the FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I am also cognisant of the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large.
It would appear that the public interest in enhancing the transparency and accountability of TUSLA in terms of its engagements with the applicant and her family has been served to some extent by the partial grant of the request. The question I must consider is whether the public interest in further enhancing the transparency and accountability of TUSLA by releasing the remaining records outweighs, on balance, the public interest in protecting the privacy rights of the third parties concerned. In my view, it does not, given the significant protection afforded to privacy rights. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that TUSLA was justified in its decision to refuse access to the withheld information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse access to the records at issue under sections 31 and 37 of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.